Citation Nr: 18140907 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-14 706 DATE: October 9, 2018 ORDER The appeal as to whether the Veteran filed a timely substantive appeal (VA Form 9) to a February 2010 rating decision is denied. FINDINGS OF FACT 1. The Veteran did not file a VA Form 9 within 60 days of the date on which the March 11, 2013 statement of the case was sent to him, or within one year of the notice of the decision being appealed. 2. The Veteran did not request an extension of time to file his VA Form 9 with good cause shown before the expiration of the period for filing a VA Form 9 and the Agency of Original Jurisdiction (AOJ) did not waive the timely filing of a VA Form 9.   CONCLUSION OF LAW 1. The Veteran did not file a timely substantive appeal to issues identified in a February 2010 rating decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.303 (2017). 2. The February 2010 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to December 1980 and from August 1986 to February 2005. This matter comes to the Board of Veterans’ Appeals (Board) from a February 2010 rating decision. The Board notes that the Veteran has made vague allegations of error with the February 2010 rating decision, most recently in a May 2014 notice of disagreement. In order to assert clear and unmistakable error (CUE), the Veteran must adhere to specific pleading requirements. For additional reference, if the Veteran wishes to file a formal CUE claim, the Board directs his attention to 38 C.F.R. § 3.105. Whether the Veteran filed a timely substantive appeal on the issues of increased ratings for lumbar spine, bilateral shoulder, kidney, and right lower extremity radiculopathy disabilities. A substantive appeal must be filed within 60 days of the date of the mailing of a statement of the case, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2017). In a February 2010 rating decision, the RO continued a 20 percent rating for a lumbar spine disability, granted an increased 10 percent rating for a right shoulder disability, continued a noncompensable rating for a kidney disability, granted service connection for left shoulder and right lower extremity radiculopathy disabilities, evaluated at 10 percent each, and denied service connection for a right hip disability. The Veteran submitted a timely notice of disagreement to the issues identified in the February 2010 rating decision. The RO issued a statement of the case, sent on March 11, 2013, which informed the Veteran that he must file a formal appeal within 60 days, and that he could complete his appeal with the enclosed VA Form 9. The Veteran did not perfect his appeal in a timely manner. A VA Form 9 dated May 29, 2013, was not received by the RO until June 5, 2013. Even with due consideration of the mailbox rule, the benefit of the doubt doctrine, and using the May 29, 2013, date, this exceeded both the statutorily prescribed 60-day period following the issuance of the statement of the case and the 1-year period following issuance of the rating decision. See 38 C.F.R. §§ 20.302(b), 20.305 (2017). In a January 2014 administrative decision, VA informed the Veteran that it did not consider the June 2013 VA Form 9 timely. The Veteran has not contested the receipt of the March 11, 2013, statement of the case, and there is no evidence that he did not also receive a VA Form 9. The evidence does not reflect that the Veteran requested an extension prior to the expiration of the 60-day deadline to file a VA Form 9. Furthermore, the evidence does not reflect that VA waived the timeliness of the June 2013 VA Form 9 or indicated to the Veteran that his appeal from the February 2010 rating decision remained in appellate status. The Board finds that a substantive appeal addressing the issues of increased ratings for lumbar spine, bilateral shoulder, kidney, and right lower extremity radiculopathy disabilities listed on a February 2010 rating decision and March 11, 2013, statement of the case was received on June 5, 2013. Therefore, the Veteran’s substantive appeal was not filed within 60 days of the date of the mailing of a statement of the case, and was not filed within one year of the notice of the decision being appealed. Accordingly, the substantive appeal is not timely, and the appeal as to whether the Veteran filed a timely VA Form 9 to the February 2010 rating decision is denied. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel